Summary: Ms X complained the Council unreasonably refused to assign a social worker from its children with disabilities service to assess her son and has delayed in meeting his needs. The Council has not considered the complaint at stage two of the statutory children’s complaints procedure. There are no grounds for the Ombudsman to consider the complaint early. The Council will conduct a stage two investigation, apologise to Ms X and make a payment to her to remedy the injustice caused by its delay.

The complaint

1. Ms X complained the Council refused to assign a social worker from its children with disabilities service to assess her son, B. She said his current child in need plan does not meet his needs and he needs support with his transition to adulthood.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I considered the complaint made by Ms X, the documents she provided and the Council’s responses to her.
5. I took account of the Ombudsman’s focus report ‘Are we getting the best from children’s social care complaints?’ published in March 2015.
6. I gave Ms X and the Council an opportunity to comment on my draft decision and I considered their responses.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Background

8. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, Getting the Best from Complaints, explains councils’ responsibilities in more detail.
9. The guidance says who can complain and what they can complain about. This includes disputed decisions, concerns about the appropriateness of a service, and the application of eligibility criteria.
10. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
11. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. The guidance says once a council has accepted a complaint at stage one, it must ensure the complaint continues to stages two and three if that is the complainant’s wish.
12. At stage two of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel.
13. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.
14. In the focus report referred to in paragraph 5, the Ombudsman found that a common problem was a refusal by councils to allow complaints to go through all stages of the statutory complaints procedure. In this report, he clarified that the Ombudsman would be unlikely to accept complaints brought early except where the criteria in paragraph 13 had been met.

What happened

15. Ms X’s son B is nearly 18. He has a diagnosis of autism with other complex needs, and there are concerns that he is at risk of being exploited.
16. In April 2019, Ms X complained to the Council about its refusal to assign B a social worker from the children with disabilities service. The Council declined her request on the basis B did not meet the criteria for assessment by the children with disabilities service. Ms X said that because of his complex needs he needed a tailored plan of support and a plan for transition to adulthood. She also said B’s child in need plan was not meeting his needs.
17. The Council dealt with the complaint at stage one of the statutory children’s complaints procedure. It responded to Ms X in early May. It said the manager of the children with disabilities service had decided B’s needs would not meet its eligibility criteria as they were not ‘severe’. The Council recognised the assigned children’s social worker did not have specialist knowledge of autism. It said it would offer B support through his child in need plan which it would alter to ensure it met his needs. The Council said B’s social worker would contact the special educational needs team to ask for a review of B’s education, health and care plan. Finally, it directed Ms X to contact its complaints officer if she was dissatisfied with the response and wished to take the matter further.
18. Two weeks later, Ms X wrote to the Council to ask it to investigate her complaint at stage two. She asked for clarification of how the Council had applied its eligibility criteria in B’s case. She said other professionals working with B felt he met the criteria for assessment by the children with disabilities service.
19. The Council replied in mid-June. It said there were no grounds to investigate the complaint at stage two. It said the eligibility criteria had been agreed by senior officers and was consistent with other councils.
20. Ms X told the Council she was unhappy with the decision. She wrote to the Council again in July seeking clarity on the information it had given her in the two responses she had received.
21. The Council responded two months later. It did not answer her specific queries. It reiterated there were no grounds to investigate the complaint at stage two. It did not direct Ms X to the Ombudsman.

Analysis

22. There is no provision in the law or guidance which allows the Council to refuse to investigate Ms X’s complaint at stage two once it has accepted the complaint at stage one of the statutory complaints procedure. The Council’s failure to carry out a stage two investigation is fault.
23. Consequently, Ms X has not received answers to the questions she raised about her son’s case and has been denied the opportunity for independent oversight at stage two. She has been put to the time and trouble of contacting the Ombudsman to seek redress.
24. I am not persuaded this complaint meets the criteria in paragraph 13 for early referral to the Ombudsman as there has not yet been a stage two investigation. If Ms X is still dissatisfied after the stage two investigation and the case meets the criteria set out in paragraph 13, she can bring these matters back to the Ombudsman. Alternatively, Ms X can bring matters back to us after the stage three review panel should one take place.

Agreed action

25. Within four weeks of this decision, to remedy the injustice caused, the Council will:
• Apologise to Ms X for the failure to undertake a stage two investigation.
• Pay Ms X £200 in recognition of the time and trouble she has been put to in contacting the Ombudsman to secure a stage two investigation and the delay in carrying out that investigation.
• Appoint an investigating officer and independent person to carry out a stage two investigation.
• Issue a reminder to staff dealing with complaints of the duty to investigate at all three stages of the statutory complaints procedure, unless the criteria for early referral to the Ombudsman is met.

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Final decision

26. I uphold this complaint. Ms X has been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman